Adam Clemens wins QOCs appeal in mixed PI, data protection, misuse of private information and Article 8 claim

In The Commissioner of Police of the Metropolis v Brown, the Equality and Human Rights Commission intervening [2018] EWHC 2046 (Admin), the court considered not only the proper construction of the QOCS provisions in CPR 44.13 and 44.16(2)(b), but the wider implications of the QOCS regime as a whole for access to justice. The Equality and Human Rights Commission argued that the QOCS regime – if given the construction contended for by the Appellants (The Chief Constable of Greater Manchester Police was the Second Appellant) – would have a “chilling effect” and would operate as a denial of access to justice. Mrs Justice Whipple allowed the appeals, finding that the court had a discretion to disapply QOCS protection in mixed claims, even though personal injury was claimed in relation to each cause of action – misfeasance, misuse of private information and breaches of the Data Protection Act (DPA) and Article 8. It is not known whether the Respondent, Ms Brown, will seek permission to appeal.

The factual backdrop

B, then a serving Metropolitan police officer, travelled abroad without telling her line manager of her whereabouts. As part of preparatory work for possible disciplinary proceedings, the Met’ police requested information from the National Border Targeting Centre (then managed by the Manchester police) and later from Virgin Atlantic as to the travel arrangements and when those arrangements had been made. B received informal management action.

B then sued for misfeasance, misuse of private information and breaches of the DPA and Article 8. It was a “mixed claim.” Both the Met’ and the Manchester police admitted breaches of the DPA and Article 8 pre-trial. (The way in which the requests were made by the Met’ police were not DPA compliant and resulted in the production of more information than had been requested, including travel movements over several years). B fought on misuse of private information and won, but lost on misfeasance. Her claim that she had been subjected to a targeted vendetta was rejected out of hand. She claimed that the events in general had caused, or exacerbated, depression. The damages award of £6,000 against the Met’ police was less than half of a relatively early Part 36 offer of £15,000.

QOCS at first instance

The trial Judge, HHJ Luba QC, rejected the claim for personal injury, but awarded damages for breach of the DPA, misuse of private information and Article 8. He refused declaratory relief and an application for erasure of data, and rejected the claim for aggravated damages (exemplary damages being abandoned). The Judge – in fairness to him the decision in Jeffreys v The Commissioner of Police of the Metropolis [2017] EWH||C 1505 (QB) had not been handed down – made costs orders in the Appellants’ favour (because of the failure to beat their Part 36 offers), but declined to allow them to be enforced. He reasoned, because personal injury was pleaded in relation to each cause of action, that B had not made a claim other than a claim to which Section II of Part 44 (QOCS) applied, so the discretionary exception in CPR 44.16(2)(b) was not available to him. Yet having rejected the personal injury claim, he went on to awards damages. By pleading her case in that way, B effectively secured automatic and universal QOCS protection. Such an approach was counter-intuitive and internally inconsistent, a point not lost on Warby J when granting permission to appeal.

The appeal

In giving permission, Warby J was fortified by the decisions in Jeffreys and Siddique v Chancellor, Masters and Scholars of the University of Oxford [2018] 4 WLR 62. The Appellants contended – with the lead being taken by the Metropolitan Police – that, whilst QOCS applied to the claim(s) in the broadest terms, the claims which were not dependent on B establishing personal injury were claims other than a claim to which Section II applied. B, supported by the Equality and Human Rights Commission, argued for a literal interpretation of 44.13(1) – “this section applied to proceedings which include a claim for damages for (a) personal injury” – and that any claim which included a personal injury component, however trivial in the context of the claim as a whole, attracted universal QOCS protection. The Equality and Human Rights Commission went further to contend that the virtual certainty of QOCS protection was necessary so as not to impede access to justice, and that any such lack of certainty would have a “chilling effect” on the bringing of claims.

Whipple J rejected those arguments. The key points of the decision are:

1. Part 44.13 is no more than a broad jurisdictional gateway which brings mixed claims within the QOCS regime. Part 44.16(2) provides the mechanism for dealing with mixed claims because a claim is made for personal injuries “as well as” for something else.
2. This was an exemplar of a “mixed claim.” B’s attempts either to distinguish Jeffreys on the facts, or to argue that it was plain wrong, failed.
3. Construing 44.13 literally, and in isolation, would render the 44.16(2)(b) exception, and the possible exercise of discretion, both unnecessary and redundant.
4. “Dressing up” a mixed claim as a personal injury claim in an attempt to secure QOCS protection is impermissible.
5. It was no answer for a claimant to contend that a defendant had a strike out option as some sort of substitute replacement for the exercise of the discretion.

Significance

This case not only affirms the decisions in Jeffreys (and to a lesser extent Siddiqui) but goes further in considering the QOCS regime as a whole in the context of access to justice. The possibility of enforcement of a costs order made in a defendant’s favour where a claimant fails to beat a Part 36 offer begins to take on some potency. The extent to which a costs order might be enforceable will be a matter of broad discretion where it is “just” to do so.

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